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THIRD
SECTION
CASE OF DOLHAR v. SLOVENIA
(Application
no. 66822/01)
JUDGMENT
STRASBOURG
18 March
2008
This
judgment will become final in the circumstances set out in Article 44
§ 2 of the Convention. It may be subject to editorial
revision.
In the case of Dolhar v. Slovenia,
The
European Court of Human Rights (Third Section), sitting as a Chamber
composed of:
Josep Casadevall,
President,
Elisabet Fura-Sandström,
Corneliu
Bîrsan,
Boštjan M. Zupančič,
Alvina
Gyulumyan,
Egbert Myjer,
Luis López
Guerra, judges,
and Santiago Quesada, Section Registrar,
Having deliberated
in private on 26 February 2008,
Delivers
the following judgment, which was adopted on that date:
PROCEDURE
- The
case originated in an application
(no. 66822/01) against the
Republic of Slovenia lodged with the Court
under Article 34 of the Convention for the Protection
of Human Rights and Fundamental Freedoms (“the Convention”)
by a Slovenian national, Mr JoZe
Dolhar (“the applicant”), on 9 January 2001.
- The
Slovenian Government (“the Government”) were represented
by their Agent, Mr L. Bembič, State Attorney-General.
- The
applicant alleged under Article 6 § 1 of the Convention that the
length of the proceedings before the domestic courts to which he was
a party was excessive. He also invoked Article 13 of the Convention,
claiming that the available domestic remedies for excessive length of
proceedings were not effective. He further alleged that the delays in
the court proceedings amounted to a violation of his rights under
Article 1 of Protocol No. 1, Article 3 of Protocol No. 7
and Article 4 of Protocol No. 7 to the Convention.
- On
5 September 2006 the
Court decided to give notice of the complaints concerning the length
of the proceedings and the lack of remedies in that respect to the
Government. Applying Article 29 § 3 of the Convention, it
decided to rule on the admissibility and merits of the application at
the same time.
THE FACTS
I. THE CIRCUMSTANCES OF THE CASE
- The
applicant was born in 1927 and lives in Kranj.
- On
26 August 1949, in the framework of criminal proceedings, the
applicant's father J.D. was sentenced, inter alia, to
forfeiture of his property to the State. On 26 December 1949 that
judgment was executed by the decision of the Kranj Local Court.
- On
30 October 1991, after the establishment of independence of the
Republic of Slovenia and the change of the political regime, the
Supreme Court partly granted the request for protection of legality
(zahteva za varstvo zakonitosti) filed by the Public
Prosecutor in respect of the criminal judgment of 26 August 1949 and
acquitted J.D. of some of the charges.
- As
for the remaining part of the conviction, including the part relating
to forfeiture of property to the State, the applicant and his brother
filed a request for reopening of the criminal proceedings, which was
granted by the Ljubljana Basic Court, Ljubljana Unit (Temeljno
sodišče v Ljubljani, Enota v Ljubljani) on 19
November 1993. Further to the withdrawal of charges by the Public
Prosecutor, the Ljubljana Basic Court on 15 December 1993
discontinued the criminal proceedings and set aside the
judgment of 26 August 1949.
- On
27 December 1993 the applicant then requested the Kranj Local Court
(Okrajno sodišče v Kranju) to set aside also the
decision of 26 December 1949, executing the initial
criminal judgment and forfeiting the property to the State, and to
enter the transfer of ownership of the forfeited property back to
J.D. in the land register.
- In
addition, on 7 June 1994, the J.D.'s heirs, including the applicant,
started proceedings against the Republic of Slovenia for restitution
of the property forfeited to J.D. before the Kranj District Court
(OkroZno sodišče v Kranju). They requested that
all the forfeited immovable property be returned in natura.
- On
9 March 1995 the Kranj Local Court granted the applicant's
request for the annulment of the execution decision of 26 December
1949, but not for the entry of the transfer of ownership of the
forfeited property in the land register. The applicant lodged an
appeal, which was dismissed on 6 August 1996 by the Kranj Local
Court as lodged out of time.
- On
9 February 1996, in reply to a summons by the Kranj District Court,
the applicant informed it that he objected to the institution and
continuation of the proceedings for the restitution of forfeited
property, started on 7 June 1994 by a group of heirs of J.D.,
claiming that the restitution of the property could already be
carried out on the basis of the decision of the Kranj Local Court of
9 March 1995 alone, which had quashed the decision on execution of
the sentence of forfeiture of property.
- On
13 February 1996 the applicant requested cancellation of the
scheduled hearing, which was granted by the court.
- On
the same date the applicant also lodged a request for the designation
of another court to decide on the case, which was rejected by the
Supreme Court on 12 June 1996.
- On
16 March 1998, the applicant again requested the land register to
enter the transfer of ownership back to J.D. on the basis of the
decision of Kranj Local Court of 9 March 1995, which had quashed the
decision on execution of the sentence of forfeiture of property of 26
December 1949. On 26 August 1998 the Kranj District Court
rejected his request, stating that property in cases such as the
applicant's could only be returned in the non-contentious proceedings
provided for in respect of the restitution of forfeited property, and
further, that two sets of such proceedings were already pending
before the court further to the applicant's request. The applicant
filed an appeal, which was rejected by the Ljubljana Higher Court on
11 November 1998.
- On
25 August 1998 the applicant lodged a request for the land register
to prohibit the disposal and encumbrance of the property in question,
which was rejected by the Kranj Local Court on 20 March 2000.
- On
29 March 1999 the Kranj District Court joined different sets of
proceedings for restitution of the forfeited property, to which the
applicant, as well as other family members, were parties.
- Between
17 May 1999 and 15 March 2001 the court held five hearings.
- On
18 July 1999 the applicant again lodged a request for the land
register to prohibit the disposal and encumbrance of the property at
issue. On 18 January 2000 the Kranj Local Court referred the
applicant to its previous decisions, that the requested entry in the
land register could only be approved after the final decision had
been delivered in the restitution proceedings.
- On
17 April 2000 the applicant lodged a constitutional appeal with
regard to not being granted the requested entry in the land register,
which was dismissed by the Constitutional Court on 30 May 2000 as
incomplete.
- On
16 August 2000 the applicant lodged a supervisory appeal with the
Ministry of Justice, which replied on 14 November 2000.
- In
the years 2000 and 2001, the applicant lodged complaints concerning
the refusal of the land register to enter the transfer of ownership
back to his father J.D. and the length of the restitution proceedings
with the Slovenian Parliament, the Government, the Ministry for
Justice, the Supreme Court, the Public Prosecutor and the Ombudsman.
- On
15 March 2001 the Kranj District Court issued a partial decision
granting compensation for the forfeited movable property to J.D.'s
heirs, including the applicant. It awarded each of them 112,879
Slovenian tolars (SIT) (EUR 471), payable in State bonds. The
decision was upheld by the Ljubljana Higher Court on 18 July 2001.
- On
24 January 2003 the court held another hearing, at which it decided
on the remainder of the restitution claims, concerning the forfeited
immovable property. The court established that restitution in
natura was no longer possible, since on the claimed plots of land
at Brdo at Kranj (Brdo pri Kranju) several buildings had been
built after their forfeiture to the State, some of which were used
also by the State for its ceremonial events. The claimants were
therefore granted compensation for the forfeited immovable property
in the amount of SIT 424,270 (EUR 1770,50), payable in State bonds.
The applicant appealed.
- On
3 September 2003 the decision was upheld by the Ljubljana Higher
Court. On 13 April 2005 the Supreme Court rejected the applicant's
request for revision.
- On
21 December 2005 the Constitutional Court dismissed the applicant's
constitutional appeal. It is not clear from the case file when the
decision was served on the applicant.
- On
8 April 2004 the applicant again requested the land register to enter
the transfer of ownership of the forfeited property back to his
father J.D., which was rejected by the court on 14 July 2004.
II. RELEVANT DOMESTIC LAW AND PRACTICE
1. The Constitution of the Republic of Slovenia
- The
following provisions of the 1991 Constitution (Ustava Republike
Slovenije, Official Journal no. 33/91) are particularly relevant
for the present case:
Article 23
“Everyone has the right to have any decision
regarding his rights, duties and any charges brought against him made
without undue delay by an independent, impartial court constituted by
law.”
Article 26
“Everyone shall have the right to compensation for
damage caused by the unlawful acts of a person or body when
performing a function or engaged in an activity on behalf of a state
or local authority or as a holder of public office ...”
Article 30
“Any person unjustly convicted of a criminal
offence or deprived of his liberty without due cause has the right to
rehabilitation and compensation, and other rights provided by law.”
2. The Act on the Protection of the Right to a Trial
without undue Delay
- The
Act on the Protection of the Right to a Trial without undue Delay
(Zakon o varstvu pravice do sojenja brez nepotrebnega odlašanja,
Official Journal, no. 49/2006) has been implemented since 1
January 2007. Under its Sections 1 and 2, the right to a trial
within a reasonable time is guaranteed to a party to court
proceedings, to a participant in non-contentious proceedings and to
an injured party in criminal proceedings.
- Section
25 lays down the following transitional rules in relation to
applications already pending before the Court:
Section 25 - Just satisfaction for damage sustained
prior to implementation of this Act
“(1) In cases where a violation of the right to a
trial without undue delay has already ceased and the party had filed
a claim for just satisfaction with the international court before the
date of implementation of this Act, the State Attorney's Office shall
offer the party a settlement on the amount of just satisfaction
within four months after the date of receipt of the case referred by
the international court for the settlement procedure. The party shall
submit a settlement proposal to the State Attorney's Office within
two months of the date of receipt of the proposal of the State
Attorney's Office. The State Attorney's Office shall decide on the
proposal as soon as possible and within a period of four months at
the latest. ...
(2) If the proposal for settlement referred to in
paragraph 1 of this section is not acceded to or the State Attorney's
Office and the party fail to negotiate an agreement within four
months after the date on which the party filed its proposal, the
party may bring an action before the competent court under this Act.
The party may bring an action within six months after receiving the
State Attorney's Office reply that the party's proposal referred to
in the previous paragraph was not acceded to, or after the expiry of
the period fixed in the previous paragraph for the State Attorney's
Office to decide to proceed with settlement. Irrespective of the type
or amount of the claim, the provisions of the Civil Procedure Act
concerning small claims shall apply in proceedings before a court.”
3. The Denationalisation Act
- The
Denationalisation Act (Zakon o denacionalizaciji, Official
Journal no. 27/91) forms the basis for restitution of property
(or its value) that had passed into State ownership through previous
legislation (agrarian reform, nationalisation, confiscation, etc.).
- Section
3 provides that all natural persons whose property had passed into
State ownership on the basis of the listed legislation adopted in the
aftermath of the Second World War are entitled to denationalisation.
Section 4 further specifies that all other natural persons whose
property was nationalised by a legal act issued before 1963 are
entitled to denationalisation.
- The
Denationalisation Act governs, inter alia, the form and scope
of restitution, the restrictions on restitution and the valuation of
property. In particular, it provides for several exceptions in which
the property should not be returned in natura, for example if
the property belongs to the natural or cultural heritage of the State
(Section 17), or if it is used for State activities which could not
be satisfactorily transferred to another location (Section 19).
Furthermore, in its Sections 2 and 42 to 44 it provides that, where
property cannot be returned in its original form, compensation is
payable (not in cash but in State bonds payable in instalments over
15 years).
- In
accordance with its Section 92, the Denationalisation Act originally
applied also to the restitution of property in cases where the
property was forfeited by virtue of criminal judgments handed down
before 31 December 1958. Since the
restitution of property to a wrongfully convicted person is otherwise
governed by the Act on Implementation of Penal Sanctions, which does
not provide for the above-mentioned restrictions on the restitution
of the forfeited property, Section 92 of the Denationalisation Act
had an effect of introducing a less favourable restitution regime
where the criminal judgment was rendered before 31 December
1958. This provision was rescinded by the Constitutional Court
on 5 November 1992, partly on the ground that it was
retroactive and thus violated Article 155 of the Slovenian
Constitution (decision no. U-I-10/92, see below).
4. The Criminal Procedure Act
- According
to the Criminal Procedure Act (Zakon o kazenskem postopku,
Official Journal no. 63/1994) provides:
Section 538 § 1
“When extraordinary judicial review proceedings
against a person, finally convicted (...) have been definitively
discontinued, such person shall enjoy the right to compensation for
the damage sustained as a result of his wrongful conviction.”
5. The Act on Temporary, Partial Suspension of
Restitution of Property
- On
30 December 1995, the Act on Temporary, Partial Suspension of
Restitution of Property (Official Journal no. 74/95) entered into
force, which held in abeyance certain types of restitution
proceedings for a period of three years.
6. The 1997 Act on the Temporary Suspension of Certain
Provisions of the Denationalisation Act and of the Act on
Implementation of Penal Sanctions
- On
8 August 1997 the Act on the Temporary Suspension of Certain
Provisions of the Denationalisation Act and of the Act of
Implementation of Penal Sanctions (Zakon o začasnem zadrZanju
izvajanja nekaterih določb zakona o denacionalizaciji in zakona
o izvrševanju kazenskih sankcij, Official Journal no.
49/97) was adopted. Its Section 2 suspended, originally until
20 December 1997 and subsequently, under new legislation,
until 31 March 1998, proceedings concerning claims for the
restitution of or compensation for property, inter alia in
cases where the property had been confiscated by virtue of criminal
judgments handed down before 31 December 1958.
7. The Act on Implementation of Penal Sanctions, as
amended
- Prior
to the 1998 amendments, the Act on Implementation of Penal Sanctions
(Zakon o izvrševanju kazenskih sankcij, Official
Journal no. 17/78, 8/90) applied also to the restitution of property
forfeited by criminal judgments which were handed down before
31 December 1958 and were later quashed (see below the
Constitutional Court's decision U-I-10/92 of 5 November 1992).
In its Section 145 it provided that the court which executed the
sentence of forfeiture of property also decided on restitution of or
compensation for the forfeited property.
- The
1998 Act on Amendments of, and Supplements to, the Act on
Implementation of Penal Sanctions (Zakon o spremembah in
dopolnitvah Zakona o izvrševanju kazenskih sankcij,
Official Journal no. 10/98) added new Sections 145A and 145C to the
Act. As far as claims for restitution of property forfeited by
criminal judgments handed down before 31 December 1958 are
concerned, Section 145A replaced Section 145 and referred back to the
Denationalisation Act to govern the form and scope of restitution,
the restrictions on restitution and the valuation of property, thus
providing again for a less favourable restitution regime than granted
under the Act on Implementation of Penal Sanctions.
- Section
3 made the change applicable also in non-contentious and contentious
proceedings concerning the restitution of confiscated property when
such proceedings had commenced before the Act came into force, but
had not become final by that time.
8. The Constitutional Court's decisions
- On
5 November 1992 the Constitutional Court quashed Section 92
of the Denationalisation Act, which provided for the restitution of
property forfeited by virtue of criminal judgments which were handed
down before 31 December 1958 and later quashed on the basis
of extraordinary legal remedies, to be governed by the
Denationalisation Act (decision no. U-I-10/92). The court established
that the challenged provisions interfered with the effect of final
decisions on quashing the criminal judgments and retroactively
affected the rights of wrongfully convicted persons. According to the
court's findings, the restitution of this type of property should
instead be governed by the Act on Implementation of Penal Sanctions,
which provided for a more favourable restitution regime.
- Further
to another constitutional initiative, the Constitutional Court was
called to rule upon the constitutionality of amended Sections 145A
and 145C of the Act on Implementation of Penal Sanctions, which refer
back to the Denationalisation Act to govern the restitution of
property forfeited by criminal judgments handed down before
31 December 1958 and thus provide for a less favourable
restitution regime. The court held that the challenged provisions did
not conflict with the Constitution, because such interference with
the constitutional rights of unjustly convicted persons granted under
Articles 30 (right to rehabilitation and compensation in criminal
proceedings) and 33 (right to own and inherit property) of the
Constitution was indispensable for the protection of the rights of
other rightful claimants under the Denationalisation Act, who were
similarly entitled to reparation for the wrongs perpetrated in the
aftermath of the Second World War (a joined decision no. U-I-60/98 of
16 July 1998). The principle of the Welfare State empowered the
legislator, with due consideration to the right of all citizens to
social security, to have regard to the financial resources of
the State and, in cases which were constitutionally admissible, also
to restrict certain rights accordingly.
- The
Constitutional Court also added that, when deciding on
5 November 1992 to quash Section 92 of the
Denationalisation Act and to consider the Act on Implementation of
Penal Sanction as the appropriate basis to govern the restitution of
the property forfeited by criminal judgments rendered prior to 31
December 1958 (decision no. U-I-10/92), it had been unaware of the
full extent of the property forfeited through criminal proceedings
prior to 31 December 1958 and thus also of the financial obligations
incumbent on the State.
- The
Constitutional Court further ruled that Article 3 of the Act on
Amendments of, and Supplements to, the Act on Implementation of Penal
Sanctions was in conformity with the Constitution, notwithstanding
the fact that it retroactively interfered with acquired rights,
because the retroactive effect of the Act was justified by the public
interest.
9. The Supreme Court's decision
- Since
the Act on Implementation of Penal Sanctions does not provide for any
particular procedure to govern the restitution of property forfeited
by a criminal judgment, the Supreme Court adopted on 21 and
22 December 1992 a legal opinion that such property is to
be returned in “non-contentious proceedings, which is a less
formal procedure and therefore in favour to the person entitled to
restitution” (Supreme Court Report no. 11/92).
THE LAW
I. ALLEGED VIOLATION OF ARTICLE 6 § 1 AS TO THE
LENGTH OF THE PROCEEDINGS AND 13 OF THE CONVENTION
- The
applicant complained about the excessive length of the proceedings.
He relied on Article 6 § 1 of the Convention, which reads as
follows:
“In the determination of his civil rights and
obligations ..., everyone is entitled to a... hearing within a
reasonable time by [a] ... tribunal...”
- The
applicant further complained that the remedies available for
excessive length of court proceedings in Slovenia were ineffective.
He relied on Article 13 of the Convention, which reads as follows:
“Everyone whose rights and freedoms as set forth
in [the] Convention are violated shall have an effective remedy
before a national authority notwithstanding that the violation has
been committed by persons acting in an official capacity.”
Admissibility
- The
applicant claimed the remedies available were not effective.
- The
Government pleaded non-exhaustion of domestic remedies.
- The
Court notes that in the proceedings to which the applicant was a
party the final decision was taken on 21 December 2005, when the
Constitutional Court dismissed his constitutional appeal. It follows
that the proceedings had terminated before the Act on the Protection
of the Right to a Trial without undue Delay (“the 2006 Act”)
entered into force. The applicant could therefore only have availed
himself of the legal remedies available before the 2006 Act became
operational. The present application is thus similar to the cases of
Belinger and Lukenda (see Belinger v. Slovenia
(dec.), no. 42320/98, 2 October 2001, and Lukenda v.
Slovenia, no. 23032/02, 6 October 2005, see also
Grzinčič v.
Slovenia, no. 26867/02, judgment, 3 May 2007). In those cases the
Court dismissed the Government's objection of non-exhaustion of
domestic remedies because it found that the legal remedies at the
applicant's disposal at that time were ineffective. The Court recalls
its findings in the Lukenda judgment that the violation of the
right to a trial within a reasonable time was a systemic problem
resulting from inadequate legislation and inefficiency in the
administration of justice.
- As
regards the instant case, the Court finds that the Government have
not submitted any convincing arguments which would require the Court
to distinguish it from its established case-law.
- The
Government's objection must therefore be dismissed. The Court
further finds that the applicant's complaints relating to the length
of the proceedings and the lack of effective remedies are not
manifestly ill-founded within the meaning of Article 35 § 3
of the Convention. Nor are they inadmissible on any other grounds.
They must therefore be declared admissible.
B. Merits
1. Article 6 § 1 of the Convention
(a) The parties' submissions
- The
applicant maintained that the proceedings, in objective terms, did
not meet the “reasonable time” requirement.
- The
Government claimed that the length of the proceedings was due to the
complexity of the case, in particular in view of fact that the
property was extensive and included several items. The applicant
contributed himself to additional delays, by insisting on unrealistic
claims for restitution of all the property in natura, refusing
to co-operate, cancelling the scheduled hearing and requesting that
another court decide on the case.
(b) The Court's assessment
- In determining the relevant period to be taken into
consideration, the Court notes that the proceedings started on 7 June
1994, that is, before 28 June 1994, when the Convention
took effect with respect to Slovenia. Given its jurisdiction ratione
temporis, the Court can only consider the period which has
elapsed since that date, although it will have regard to the stage
reached in the proceedings in the domestic courts on that date (see,
for instance, Belinger, cited above, and Kudła v.
Poland [GC], no. 30210/96, § 123, ECHR 2000 XI).
The proceedings terminated on 21 December 2005 at the earliest,
when the Constitutional Court dismissed the applicant's
constitutional appeal. The period to be taken into account is
therefore nearly 11 years and 6 months, during which the applicant's
case was dealt with by four levels of jurisdiction.
- The
Court reiterates that the reasonableness of the length of proceedings
must be assessed in the light of the circumstances of the case and
with reference to the following criteria: the complexity of the case,
the conduct of the applicant and the relevant authorities, and what
was at stake for the applicant in the dispute (see, among many other
authorities, Frydlender v. France [GC], no. 30979/96, §
43, ECHR 2000-VII).
- The
Court notes that the proceedings were of some complexity. The Court
also takes into account that what was at issue in the domestic
proceedings was of some importance to the applicant. The Court
considers, however, that the applicant's conduct, in particular his
refusal to co-operate in the proceedings and to attend the scheduled
hearing contributed to a certain extent to the length of the
proceedings. The Government, on the other hand, failed to provide any
explanation for several substantial delays in the proceedings, such
as more than a three-year period between the day the court cancelled
the scheduled hearing and the day on which it joined different sets
of restitution proceedings. The court also remained completely
inactive for almost two years after it issued the partial decision on
compensation for the forfeited movable property.
- Having
examined all the material submitted to it, and having regard to its
case-law on the subject, the Court considers that in the instant case
the length of the proceedings was excessive and failed to meet the
“reasonable time” requirement.
- There
has accordingly been a breach of Article 6 § 1.
2. Article 13 of the Convention
- The
Court reiterates that Article 13 guarantees an effective remedy
before a national authority for an alleged breach of the requirement
under Article 6 § 1 to hear a case within a reasonable time (see
Kudła v. Poland [GC], no. 30210/96, § 156, ECHR
2000-XI). In this respect the Court notes that the objections and
arguments put forward by the Government in respect of the legal
remedies available before the Act on the Protection of the Right to a
Trial without undue Delay entered into force have been rejected in
earlier cases (see Grzinčič, cited above) and sees
no reason to reach a different conclusion in the present case.
- Accordingly,
the Court considers that in the instant case there has been a
violation of Article 13 on account of the lack of a remedy under
domestic law whereby the applicant could have obtained a ruling
upholding his right to have his case heard within a reasonable time,
as set forth in Article 6 § 1.
II. ALLEGED VIOLATIONS OF ARTICLE 1 OF PROTOCOL NO. 1,
ARTICLE 3 OF PROTOCOL NO. 7 AND ARTICLE 4 OF PROTOCOL NO. 7 TO THE
CONVENTION
- The
applicant further maintained that the proceedings for restitution of
the forfeited property were not necessary, since the restitution
could have already been granted on the basis of the decision of the
Ljubljana Basic Court of 15 December 1993, by which the court
quashed the sentence of forfeiture of property. In the applicant's
view, this decision alone already gave him the right under the
domestic legislation to the restitution, in natura, of the
immovable property forfeited by the criminal judgment. Any further
proceedings aimed at establishing this right protracted the transfer
of ownership and therefore prevented him from exercising his rights
granted under Article 1 of Protocol No. 1, Article 3 of
Protocol No. 7 and Article 4 of Protocol No. 7 to the Convention, and
therefore constituted a violation of those provisions.
- In
so far as relevant, Article 1 of Protocol No. 1 reads as follows:
“Every natural or legal person is entitled to the
peaceful enjoyment of his possessions. No one shall be deprived of
his possessions except in the public interest and subject to the
conditions provided for by law and by the general principles of
international law...”
Article
3 of Protocol No. 7 provides:
“When a person has by a final decision been
convicted of a criminal offence and when subsequently his conviction
has been reversed, or he has been pardoned, on the ground that a new
or newly discovered fact shows conclusively that there has been a
miscarriage of justice, the person who has suffered punishment as a
result of such conviction shall be compensated according to the law
or the practice of the State concerned, unless it is proved that the
non disclosure of the unknown fact in time is wholly or partly
attributable to him.”
Article
4 of Protocol No. 7 reads:
“1. No one shall be liable to be tried or
punished again in criminal proceedings under the jurisdiction of the
same State for an offence for which he has already been finally
acquitted or convicted in accordance with the law and penal procedure
of that State.
2. The provisions of the preceding paragraph
shall not prevent the reopening of the case in accordance with the
law and penal procedure of the State concerned, if there is evidence
of new or newly discovered facts, or if there has been a fundamental
defect in the previous proceedings, which could affect the outcome of
the case.
3. No derogation from this Article shall be made
under Article 15 of the Convention.”
- Concerning
the alleged violation of Article 1 of Protocol No. 1, the Court
reiterates the principles which have been established by its case-law
under Article 1 of Protocol No. 1 and which it has also stated
in its Kopecký v. Slovakia judgment ([GC],
no. 44912/98, ECHR 2004-IX (see also Sirc v. Slovenia,
no. 44580/98, 22 June 2006):
(a)
Deprivation of ownership or of another right in rem is in
principle an instantaneous act and does not produce a continuing
situation of “deprivation of a right” (see Malhous v.
the Czech Republic (dec.) [GC], no. 33071/96, ECHR 2000-XII,
with further references).
(b)
Article 1 of Protocol No. 1 does not guarantee the right to acquire
property (see Van der Mussele v. Belgium, judgment of 23
November 1983, Series A no. 70, p. 23, § 48, and Slivenko and
Others v. Latvia (dec.) [GC], no. 48321/99, § 121, ECHR
2002-II).
(c)
An applicant can allege a violation of Article 1 of Protocol No. 1
only in so far as the impugned decisions related to his “possessions”
within the meaning of this provision. “Possessions” can
be either “existing possessions” or “assets”,
including claims, in respect of which the applicant can argue that he
or she has at least a “legitimate expectation” of
obtaining effective enjoyment of a property right. By way of
contrast, the hope of recognition of a property right which it has
been impossible to exercise effectively cannot be considered a
“possession” within the meaning of Article 1 of Protocol
No. 1, nor can a conditional claim which lapses as a result of
the non-fulfilment of the condition (see Malhous v. the Czech
Republic (dec.), no. 33071/96, ECHR 2000 XII, Polacek
and Polackova v. Czech Republic (dec.) [GC],
no. 38645/97, § 62, 10 July 2002, Gratzinger
and Gratzingerova v. the Czech Republic (dec.) [GC],
no. 39794/98, § 69, ECHR 2002-VII and Bugarski and von
Vuchetich v. Slovenia (dec.), no. 44142/98, 3 July 2001).
(d)
Article 1 of Protocol No. 1 cannot be interpreted as imposing any
general obligation on the Contracting States to restore property
which was transferred to them before they ratified the Convention.
Nor does Article 1 of Protocol No. 1 impose any restrictions on the
Contracting States' freedom to determine the scope of property
restitution and to choose the conditions under which they agree to
restore property rights of former owners (see Jantner v. Slovakia,
no. 39050/97, § 34, 4 March 2003).
(e)
On the other hand, once a Contracting State, having ratified the
Convention, including Protocol No. 1, enacts legislation providing
for the full or partial restoration of property confiscated under a
previous regime, such legislation may be regarded as generating a new
property right protected by Article 1 of Protocol No. 1 for persons
satisfying the requirements for entitlement. The same may apply in
respect of arrangements for restitution or compensation established
under pre-ratification legislation, if such legislation remained in
force after the Contracting State's ratification of Protocol No. 1
(see Broniowski v. Poland [GC], 31443/96, § 125, ECHR
2004-V) .
- Turning
to the facts of the present case, the Court considers that it is
clear that the applicant could not be said to have had “existing
possessions” within the meaning of Article 1 of Protocol No. 1,
since the property in question was forfeited in 1949. It thus remains
to be examined whether the applicant could have had any “legitimate
expectation” of realising his claim to restitution at the
moment the sentence of the forfeiture of property was quashed on
9 March 1995.
- The
Court notes that according to the Constitutional Court's decision of
5 November 1992, the restitution of property forfeited by a
criminal judgment rendered before 31 December 1958 was to be governed
by the Act on Implementation of Penal Sanctions. In its Section 145,
the Act provided that the court which executed the sentence of
forfeiture also decided upon the restitution of or compensation for
the forfeited property. Furthermore, according to the Supreme Court's
opinion of 21 and 22 December 1992, the proceedings to be followed by
the court when deciding on restitution of the forfeited property were
“non-contentious” proceedings. It is clear that the
applicant was obliged under domestic law to institute proceedings in
order to exercise his right to restitution of or compensation for the
forfeited property.
- The
Court therefore finds that at the moment the sentence of forfeiture
of property was quashed on 9 March 1995, the applicant could not have
legitimately expected that the property would be returned
instantaneously, without a competent court having first examined his
request in the framework of non-contentious proceedings (see Sirc
v. Slovenia, cited above, § 275). The title to the property
the applicant sought to recover could not be vested in him on the
basis of the judgment of 9 March 1995 alone, without further
intervention of the courts (see Kopecký, cited above, §
41)
- The
Court further observes in this respect that the right to restitution
of forfeited immovable property was in fact granted to the heirs of
J.D, including the applicant, by the Kranj District Court on
24 January 2003, which awarded each of them compensation in the
amount of SIT 424,270 (EUR 1770,5), payable in State bonds. The
judgment was subsequently upheld by the higher levels of jurisdiction
and on 21 December 2005 ultimately by the Constitutional Court.
- As
for the applicant's complaint that he was not granted restitution of
immovable property in natura, the Court notes that according
to the Denationalisation Act, to which the Act on Implementation of
Penal Sanctions referred as the Act governing the restitution of
property forfeited by a criminal judgment rendered before 31 December
1958 at the time when the judgment of 24 January 2003 was
rendered, the confiscated property shall be returned in natura,
unless exceptional reasons justify the payment of compensation
instead. One such exception is provided in Section 19 of the
Denationalisation Act, which prevents property being returned in its
original form where it is used for State activities which could not
be satisfactorily transferred to another location.
- As
follows from the reasoning of the Kranj District Court in its
decision of 24 January 2003, several buildings had been built on
the claimed plots of land after their forfeiture to the State, some
of which were also used for its ceremonial events. The court
concluded that the property could therefore not be returned in
natura and instead awarded compensation to the applicant. As
follows from the court's decision, as well as from the decisions of
other domestic courts upholding this decision, the applicant did not
have a right under domestic legislation to the restitution of the
property in natura. His claim to restitution of immovable
property in natura thus essentially amounts to an objection to
the outcome of the proceedings before the judicial authorities and to
the errors of interpretation and application of domestic law
allegedly committed by them.
- The
Court recalls that while its duty, according to Article 19 of the
Convention, is to ensure the observance of the engagements undertaken
by the Contracting Parties to the Convention, it is not its function
to deal with errors of fact or law allegedly committed by a national
court unless and in so far as they may have infringed rights and
freedoms protected by the Convention. Moreover, it is primarily for
the national administrative and judicial authorities, notably the
courts, to interpret and apply domestic law (see, inter alia,
Streletz, Kessler and Krenz v. Germany [GC], nos. 34044/96,
35532/97, 44801/98, § 49, ECHR 2001-II, and Houfova
v. Czech Republic (dec.), no. 58177/00, 1 July 2003).
- In
the Court's assessment, the national judicial authorities gave
reasoned decisions, addressing all relevant submissions by the
applicant (see Nadbiskupija Zagrebačka v. Slovenia, no.
60376/00, 27 May 2004). There is nothing to show that the conclusion
of the national judicial authorities was arbitrary or contrary to the
provisions of domestic law.
- It
follows that there was no interference with the applicant's right to
respect for property, as provided by the domestic legislation. The
applicant's complaints made under Article 1 of Protocol No. 1 should
therefore be rejected as manifestly ill-founded in accordance with
Article 35 § 3 of the Convention.
- As
far as the applicant's allegations under Article 3 of Protocol No. 7
and Article 4 of Protocol No. 7 could be construed as claims to an
instantaneous restitution of the forfeited immovable property, based
solely on the Ljubljana Basic Court's judgment of 15 December 1993
quashing the sentence of forfeiture, the Court firstly notes that
under domestic law the heirs of persons wrongfully convicted in the
aftermath of the Second World War do enjoy the right to restitution
of property forfeited by virtue of criminal judgments in the
framework of non-contentious proceedings (see above § 49). The
Court further notes that the Slovenian courts, in non-contentious
proceedings, indeed granted the applicant his right to restitution of
the forfeited immovable property and awarded him compensation (see
§ 50 above). In the Court's view, the applicant can
therefore no longer claim to be a victim of the alleged violations.
-
The applicant's claims made under Article 3 of Protocol No. 7 and
Article 4 of Protocol No. 7 should therefore be declared inadmissible
as being incompatible ratione personae with the Convention and
rejected in accordance with Article 35 § 4 of the Convention.
III. APPLICATION OF ARTICLE 41 OF THE CONVENTION
- Article
41 of the Convention provides:
“If the Court finds that there has been a
violation of the Convention or the Protocols thereto, and if the
internal law of the High Contracting Party concerned allows only
partial reparation to be made, the Court shall, if necessary, afford
just satisfaction to the injured party.”
A. Damage
- The
applicant claimed to have sustained pecuniary damages and submitted
an expert report assessing the value of the forfeited immovable
property. As for non-pecuniary damages, the applicant claimed in his
application form that he sustained these as a result of the
unreasonable time required under the domestic legislation and
enforcement mechanisms for the forfeited property to be returned to
wrongfully convicted persons and their heirs. The applicant failed to
specify these claims even after the Court invited him to do so on 14
March 2007 and 30 March 2007, only referring back to the submissions
in his initial documentation of 9 January 2001.
- The
Government contested the claim, claiming that the applicant did not
properly specify his claims or submit any supporting evidence in this
respect.
- The
Court does not discern any causal link between the violation found
and the pecuniary damage alleged; it therefore rejects this claim. On
the other hand, it considers that the applicant must have sustained
non-pecuniary damage in respect of the excessive length of the
proceedings and the lack of an effective remedy. Ruling on an
equitable basis, and taking into account the applicant's conduct, it
awards him EUR 3,500 under that head.
B. Costs and expenses
- The
applicant did not clearly specify any costs and expenses he might
have incurred in the proceedings. The Court therefore makes no award
under that head.
C. Default interest
- The
Court considers it appropriate that the default interest should be
based on the marginal lending rate of the European Central Bank, to
which should be added three percentage points.
FOR THESE REASONS, THE COURT UNANIMOUSLY
- Declares the complaints concerning the excessive
length of the proceedings and the lack of remedies in that respect
admissible, and the remainder of the application inadmissible;
- Holds that there has been a violation of Article
6 § 1 of the Convention as to the length of the proceedings;
- Holds that there has been a violation of Article
13 of the Convention;
- Holds
(a) that
the respondent State is to pay the applicant, within three months
from the date on which the judgment becomes final in accordance with
Article 44 § 2 of the Convention, EUR 3,500
(three thousand five hundred Euros) in respect of non-pecuniary
damage, plus any tax that may be chargeable;
(b) that
from the expiry of the above-mentioned three months until settlement
simple interest shall be payable on the above amounts at a rate equal
to the marginal lending rate of the European Central Bank during the
default period plus three percentage points;
- Dismisses the remainder of the applicant's claim
for just satisfaction.
Done in English, and
notified in writing on 18 March 2008, pursuant to Rule 77 §§
2 and 3 of the Rules of Court.
Santiago Quesada Josep Casadevall
Registrar President
